Procedural Justice: Use of Force
August 2013
Voiceover: Beat Intro
00:00
This is the Beat—a podcast series that keeps you in the know about the latest community policing
topics facing our nation.
Mora Fiedler
00:08
Hello and welcome. My name is Mora Fiedler and on behalf of the COPS Office I’d like to introduce you
to Corporal Charles Fernandez, Defensive Tactics Coordinator at the Arlington (Texas) Police Training
Center. Corporal Fernandez is here to talk about applying procedural justice concepts to prevent
unnecessary use of force situations. Can you tell us the training you are designing on use-of-force
situations and procedural justice?
Corporal Charles Fernandez
00:36
Yeah. I would first like to emphasize that, as a department, we’ve always placed a heavy emphasis on
procedural justice and legitimacy. We’ve also decided to apply the principles to situations where the
officer was already using force. In this area there were two criteria that we use or two goals that we
shoot for. The first one is: Does the technique actually work? Does it do what it’s intended to do? Does
it end up with the subject in custody? If it doesn’t work, everything else is a moot point. Nothing else
matters if we can’t do that final function of our jobs. We must have the officers prevail in these
encounters and get the subject in custody.
Of course, number two: When the officer finally does have the suspect in custody—when they
actually do have to use force—does it reflect well on them, their department, their agency, and police
in general when it’s viewed by the community?
Using these two criteria, we were led to focusing on techniques that were based on leverage. That
gives us two benefits. Number one, they work well for officers of all sizes. We can have an officer
that’s 5’4”, 100 pounds that may be called upon to arrest a 6’5” muscular convict. There’s nothing that
we can realistically do to teach that 100-pound officer to be bigger, stronger, faster, and more
aggressive than that bigger, stronger suspect, especially if that suspect is determined not to go to jail.
So by utilizing a leverage-based system that doesn’t rely on size and strength, you can give an officer a
better chance of prevailing.
Another benefit is that using leverage just looks better to those who may be viewing it from the
outside, which would increase the chances that the community would be more accepting of it than
they would if the officers were using more aggressive or inflammatory-looking tactics.
Mora
02:22
What made your agency decide this type of training was necessary?
Charles
02:26
Well, viewing various use-of-force incidents around the country, it became apparent that, even when
officers were 100 percent justified in their actions, many times there was a negative backlash from the
community. They were not accepting of the officer’s actions, which is understandable, because the
average person in the community may be viewing it from a position of not being aware of the legal
background in which the officer made the decision. Realistically speaking, the average person doesn’t
have time to study police tactics and use-of-force case law. Furthermore, they may not be aware of
the background information that the officer had in that particular call that caused the officer to have to
use that particular level and type of force.
Let’s face it, when there’s a group of officers striking a resisting subject into submission, no matter
how justified it may be, it just looks bad. We decided to see if there was a better way to prevail in our
physical conflicts that didn’t create a negative perception or reaction by the community.
Mora
03:24
How do you address officer safety through applying procedural justice tools to encounters with the
public in this training?
Charles
03:32
It’s important to note that officer safety has got to come first. If the officer is killed or incapacitated,
nothing else matters. The officer wouldn’t be able to help anybody in the community. Everything we
do has got to have officer safety in the forefront.
In police tactics it’s widely known that the officer goes through certain physiological changes through
high-stress incidents, such as degradation of their fine motor skills, and the officer experiences tunnel
vision, or auditory exclusion, just to name a few. These are important. For example, if the officer loses
their fine motor skills, their hand dexterity is severely reduced, which means they may not be able to
operate their firearm or any of the other tools on their belt, or even use their radio to call for help. If
they experience tunnel vision, which is where the peripheral vision is severely reduced, they may not
see threats that could emerge around them. If they experience auditory exclusion, which is when they
can’t process what they’re hearing around them—they may be physically able to hear but their brain
isn’t receiving the message—then they wouldn’t hear a nearby threat or any other piece of vital
information.
While all of these are important and widely known, what is really interesting and not so well known,
and probably the most important symptom, is that under a high level of stress the officer stops using a
part of his or her brain called the pre-frontal cortex and starts operating with more primitive parts of
the brain. This can cause several things. For example, this can cause pack behavior. An example of this
is at the end of a pursuit and you have the suspect finally under control or even handcuffed, and
numerous officers are crowding around him attempting to get their strike in, like when predators in
the wild attempt to get their bite in to achieve a sense of finality. While this is a very normal human
reaction to high stress levels, it’s one we absolutely want to avoid.
Another common symptom of an officer operating with the mid-brain is getting caught in what’s called
a feedback loop. This when they’re stuck doing the same action over and over, like striking a subject
with their baton even though: A) the action is clearly not working and they should transition to another
technique; and B) the force is no longer necessary. However the officer is stuck still striking the
subject.
Now here’s why this is so important. It’s often said that an officer’s greatest weapon or tool is their
brain, which enables them to process all the information from a rapidly evolving situation and be able
to adapt accordingly. To shut that part of the brain down puts the officer at a serious disadvantage.
Now here’s the interesting part: The pre-frontal cortex is also responsible for such things as cognitive
processing, good judgment, calculating proportional responses, precision in their communication, and
precision in their tactics. It’s even responsible for moral and ethical behavior, which happen to be all
the things that the public expects out of a professional police officer.
The same part of the brain that helps an officer fight better also helps an officer make better
decisions, which is vital for legitimacy for the public. The objective becomes: How do we keep the
officer using the pre-frontal cortex when physiologically humans are predisposed not to use it when
they’re overcome with stress?
There are two strategies that we learned from Rener Gracie’s survival tactic system that we employ to
help officers to continue to use the pre-frontal cortex. The first one is positional hierarchy. This is a
system of assigning which positions in a fight are least vulnerable to attack and give the officer the
most control over a subject. Being familiar with these positions, the officer will become less likely to
be overcome by anxiety and thus more effective in a fight—by maintaining that vital part of their
brain, or at least the use of that vital part of their brain.
The next one is energy conservation, which is another principle that enhances officer safety. By using
certain positions in this positional hierarchy the officer is better able to maintain control by using just
enough energy to complete the task, while at the same time allowing the subject to burn their
energy—thus reducing their ability to resist or attack the officer. It’s when the officer is exhausted
when the danger is the greatest.
The philosophy of energy conservation is different than what has traditionally been taught, which is
for the officer to go 100 percent all-out effort for 100 percent of the entire fight until their opponent is
subdued. What I like to call the bigger, faster, harder approach. While the thinking is valid, the problem
with that is—what if the bigger, stronger subject is not subdued after 45 seconds or a minute-and-a-
half of a fight and the subject is still standing and the officer is exhausted? He is in the greatest danger
of being hurt or killed. Since the officer is probably not thinking with the pre-frontal cortex at that
time, they’re also in great danger of making bad decisions. Of course, procedural justice hinges on the
fact that officers make unbiased, prudent, legal, and fair decisions, which is, I believe, the fourth pillar
of procedural justice.
The point is we must give the officers the tools to be able to employ the procedural justice philosophy,
even under high levels of stress.
Mora
08:44
Can you talk a little bit about the importance of procedural justice and how applying procedural justice
to escalated encounters can help de-escalate the situation?
Charles
08:55
When we speak of public perceptions of these encounters, many times the public might be the very
people who are bystanders witnessing the officer struggle with a subject. Often, they can be friends,
associates, co-workers, neighbors, or even family members of the subject. We’ve all seen videos of
bystanders becoming inflamed and potentially escalating the situation because they perceive the
officer or officers not being professional—the last thing that officer needs is the bystanders turning
into a hostile crowd.
On the flip side of the coin, we’ve seen videos of friends and family members of the subject actually
telling the subject to stop resisting the officer and let the officer do their job. So by employing the
leverage-based techniques that appear benign, and effectively, professionally, communicating to the
suspect, communicating to the other officers, communicating, even, to the crowd, the officers will
appear more professional and that they’re using force because they have to rather than because
they’re mad or for some other reason that the crowd might perceive. Of course, this is the track that
we think has gained the most amount of acceptance from the viewing public that could be
instrumental in de-escalating an already escalated situation.
Mora
10:06
Not every encounter can be de-escalated. When force is necessary, what tips do you have for law
enforcement?
Charles
10:13
My advice would be to become familiar with the mechanics of a fight. Know which positions you want
to avoid and which ones you want to try to achieve. This will help slow the fight down for the officer
and, like we’ve already discussed, will keep the officer’s anxiety in check. Mental rehearsal is very
beneficial. The way an officer can utilize this is to visualize a certain scenario ahead of time and go
through the various options that he or she may have in that particular scenario and just run through
those options and apply, maybe what could best be described as a filter or benchmarks to check the
efficacy, the validity of those options.
We have something that we call the seven benchmarks to evaluate police enforcement actions. It’s a
series of seven questions designed to evaluate a police action. I’ll just run through them real quick so
the listeners have kind of an idea:
1. Was the action a just cause?
2. Was there right authority?
3. Was there right intention?
4. Were the ends and means proportional?
5. Was the action a last resort?
6. Was there a reasonable success?
7. Was the action a lethal preservation or restoration of civil order?
The officer runs through his hypothetical actions through a filter such as seven benchmarks—he can
sort out the details ahead of time so when the fight actually occurs, he or she has a certain solution
pre-programmed in place. In other words, they already have them in the procedural memory.
A good example of what procedural memory is, is driving a car. When you first learn how to drive, you
probably didn’t know any of the tasks that you are now taking for granted, such as how to put the
vehicle in gear, how to turn, how to put your turn signal on, how to adjust and check your mirrors,
starting, stopping, etc. Then, after a while, this all becomes second nature or part of your procedural
memory so you don’t have to think about it anymore. You can just concentrate on the road and the
traffic around you. Let’s say a car jumps out in front of you, you don’t have to think about how to apply
your brakes or how to turn or how to honk your horn. You just do it because you’ve already made that
decision ahead of time and sorted out those details so that your brain can just concentrate on the
unfolding situation as it occurs.
A good law enforcement example might be working a domestic disturbance. When you’re a brand-
new officer and you work your first domestic, the whole thing can be very overwhelming. The officer
is trying to remember a seemingly insurmountable amount of tasks such as separating the parties,
sweeping the house for threats, getting the names and information, looking for injuries, running them
for warrants, keeping your gun side back, etc. etc., the list goes on and on. However, after working a
dozen or so domestics, most of these tasks become part of the officer’s procedural memory. The
officers go into a domestic, they automatically separate the parties, sweep the area for weapons,
keep their gun side back, and all those things I discussed—part of the procedural memory. This frees
the officer to concentrate on the unique aspects of that particular domestic and what makes it
different, which of course is much more manageable for the human brain.
I would advise an officer to practice mental rehearsal coupled with training to keep his pre-frontal
cortex engaged in a fight, which we achieve by being familiar with the mechanics of a fight. This will not
only help the officer prevail but help the officer prevail in a way the community will support, which is
so important because we can’t accomplish our mission without the help and support of the
community.
Mora
13:50
If other agencies are interested in the work that you are doing on implementing procedural justice,
who should these agencies contact or where could they go for further information?
Charles
14:01
We have an ongoing relationship with the Center for Public Safety and Justice, and periodically host
schools in procedural justice. Charlene Moe and Dr. Kunard have been very helpful in what we’re
trying to do. We also have end-user training in defensive tactics and we host the Gracie Survival Tactics
instructor school every August. I think this year it’s August 5–9. We’re scheduled to host the very first
Gracie Survival Tactics or GST Level 2 school, at least the very first one outside of their home academy,
in November. I think the dates we have are November 4–8. Rener Gracie of the Gracie Academy has
been extremely helpful with showing us the techniques that emphasize leverage over size and
strength. We’re in the process of making a video that illustrates the traditional method and the
method that we’re proposing and comparing and contrasting the two methods.
Anyone interested in any of the things that we host or have any questions, we’re happy to help them
in any way that we can. If they just go to arlingtonpd[dot]org and click on the training center, all of my
contact information and all of my colleagues’ contact information is up there for anybody to get a hold
of us.
Mora
15:11
Thank you so much for your time and expertise!
Charles
15:14
It’s my pleasure. Thank you.
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15:16
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Voiceover: Disclaimer
15:32
The opinions contained herein are those of the authors and do not necessarily represent the official
position or polices of the U.S. Department of Justice. References to specific agencies, companies,
products, or services should not be considered an endorsement by the authors or the U.S.
Department of Justice. Rather, the references are illustrations to supplement discussion of the issues.